STATE OF GUJARAT v. ABBAS HUSEIN PATHAN & 1

========================================================= STATE OF GUJARAT - Appellant(s) Versus ABBAS HUSEIN PATHAN & 1 - Opponent(s) ========================================================= Appearance : Ms. Maulik Nanavati, APP, for Appellant(s) : 1, NOTICE SERVED for Opponent(s) : 1, MR SB NANAVATI for Opponent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 31/07/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) CR.A/105/1990 JUDGMENT The present appeal has been filed by the State of Gujarat against the judgement and order of acquittal dated

25.10.1989 passed by the learned Additional Sessions Judge, Vadodara, in Sessions Case No. 129 of 1989.

Briefly stated, the case of the prosecution is that Jail Superintendent of Vadodara Central Jail Shri Raghuvir Vora (PW-5) received information from one inmate Salimsa Lalsa while he was carrying out a round of the jail that another inmate, Abbas Pathan, respondent – original accused was selling charas in the jail. He, therefore, arranged a raid and called Circle Jailor Shri Vyas, Kamadar Ramadhar and Sepoy Zalabhai Bharwad (PW-2). He gave members of the raiding party a rs. 10/- note with his signature on it and asked them to have Salimsa purchase charas from the accused with the said money. Thereafter, Salimsa along with members of the raiding party went to ward No. 5 where the accused was lodged.

While members of the raiding party waited, Salimsa approached the accused and asked him to sell him charas for Rs. 10/- and gave the note to the accused . On receiving the decided signal from Salimsa, indicating that the accused had agreed to sell him charas, Sepoy Bharwad (PW-2) went upto the accused and caused his search whereupon he found one round piece of charas weighing about 42 grams and 11 small tablets of charas in total weighing about 5 grams. In addition, he also found a razor blade, bidis and some money on his body. Sepoy Bharwad (PW-2) and other members of the raiding party thereafter took the accused along with muddamal to the office of senior Jailor Sindhuria (PW-1) and then to the office of CR.A/105/1990 JUDGMENT the Jail Superintendent, Shri Vora.

Police was called and in presence of panchas the muddamal recovered from the accused was sealed and seized by the police under a seizure panchnama. During investigation it was found that one Babubhai Chauhan had abetted in the crime and after completion of investigation accused Abbas Pathan and Babubhai Chauhan were put on trial for commission of offences punishable under Sections 20(B) and Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

The trial Court found that the prosecution has not been able to prove its case beyond reasonable doubt and there was breach of several mandatory provisions of the Act and, therefore, acquitted both the accused.

We have heard Mr. Maulik Nanavati, learned Additional Public Prosecutor for State and perused the judgement. We have also gone through the record of the case. It is evident from the evidence on record that the accused was searched by Sepoy Bharwad (PW-2) and at prior to conducting search of his person the accused was not informed of his right to be searched either before a Magistrate or a gazetted officer. So there is a glaring breach of Section 50 of the Act. It also appears from the record that the secret information received by the Jail Superintendent Shri Vora (PW-5) was not reduced in writing nor was it communicated to the police or any other empowered officer. So even provisions of Section 42 of the Act CR.A/105/1990 JUDGMENT have been violated.

Further, as observed by the trial Court, admittedly, neither Circle Officer Shri Vyas nor Sepoy Bharwad are empowered officers under Section 41 of the Act and therefore, neither could have conducted a raid without obtaining a warrant. The trial Court has also noticed that the muddamal was not sealed properly inasmuch as no seal of the Police Station Officer of the police station was applied on the muddamal. The trial Court, therefore, held that almost all mandatory provisions contained in Chapter V of the Act have been violated in the present case and accordingly acquitted both the accused persons. In fairness to Mr. Nanavati, learned Additional Public Prosecutor, he did submit that the officers who conducted the raid were not empowered officers and in any case there had admittedly been an infringement of Section 50 of the Act, rendering the seizure illegal.